As reported in last week’s news flash, the Solicitor General (S.G.), as expected, has, on behalf of the NLRB, filed in the Supreme Court a petition for a writ of certiorari to the D.C. Circuit in the Noel Canning case. As we have noted previously, the Noel Canning decision, which invalidated the recess appointments of three NLRB members as incompatible with the Recess Appointments Clause of the Constitution (the “RAC”), also cast a cloud over the validity of the contemporaneous recess appointment of Richard Cordray as CFPB Director.

A backup to the default process of Senate “advice and consent” for Presidential appointments, the RAC, Art. II, § 2, Cl. 3, provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In Noel Canning, the D.C. Circuit held (1) that the words “the Recess” referred only to an intersession recess of Congress, and not to an intrasession recess and (2) that to qualify for a recess appointment under the RAC, the vacancy must “happen” during the intersession recess.

After pointing out that the decision would dramatically curtail the scope of Presidential authority under the RAC and calls into question every NLRB order issued since January 4, 2012, the petition argues that neither the text nor the historical implementation of the RAC supports confining it to intersession recesses. The use of “the” is not dispositive, since the definite article can equally refer to an individual item or a class of items (compare “the pen is on the desk” with “the pen is mightier than the sword”), and prior practice (mostly in the 20th century) has accorded a “functional” approach to the word “recess” that would encompass both the intersession and intra-session varieties.

The petition next argues that Executive branch practice – comprising the actions of former Presidents and several Attorney General opinions — has construed the phrase “that may happen” as referring to vacancies that exist during a recess, regardless of whether they came into existence then or antedated the recess. That construction, the S.G. asserts, is supported by the Evans case and two other circuit court opinions: United States v. Woodley, 751 F.2d 1008, 1012-1013 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986), and United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963). The petition also argues – less compellingly, in my view — that something can be said to “happen” throughout a period and not merely at one point in time (e.g., World War II “happened” during the 1940s, even though it began in 1939).

More persuasively, the petition argues that the consequences of denying review are severe. They include hamstringing the NLRB, calling into question dozens of prior recess appointments of prior administrations (and the validity of acts performed by those appointees), and other collateral consequences. For present purposes, there are also collateral consequences for the CFPB and the validity of actions taken under Mr. Cordray if certiorari in Noel Canning is denied.

Thus, while it is premature, at this juncture, to weigh in generally on the merits and demerits of the S.G.’s arguments about the proper interpretation of the RAC (we shall certainly do so here if the Court takes the case), the existence of a split in the circuits and the obvious importance of the case to the functioning of our form of Government cannot be denied. This significantly raises the odds of obtaining the writ. It is perhaps for that reason – and the absence of compelling arguments to the contrary – that the Respondent has advised the Court it does not intend to oppose the petition.

While I do not believe that the Court will duck the case on “political question” grounds, there is certainly an overtly political aspect to the case. Indeed, the case only arose as a result of the use of “pro forma sessions” in the Senate at three-day intervals, which, though they contemplated the conduct of no senatorial business, were intended to preclude the President from making any recess appointments by negating the existence of a recess or adjournment of any sort. (Art. I, § 5, Cl. 4 provides, “Neither House, during the Session of the Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting).

This was an innovation adopted by the Democratically-controlled Senate during the administration of George W. Bush, to keep him from using the RAC to appoint federal judges whose nominations otherwise stood slim chance of being confirmed by the Senate. Those same pro forma sessions were invoked with respect to the period December 2011 through January 2012. Some Senate business was, in fact, conducted during this period. In-depth analysis of these facts was, however, conspicuously absent from the petition.

At issue is the tension between two potential abuses of power. One is that the Senate could prevent the President from making recess appointments even when the Senate is unavailable to give its advice and consent. This is possible under the D.C. Circuit’s interpretation of the RAC. The S.G.’s interpretation, in contrast, would allow the President to use the RAC to evade the advice and consent process altogether, even though the Constitution, structurally speaking, makes the latter (Art. II, § 2, Cl. 2) the default mechanism and the former merely an emergency backup.

Under the Supreme Court’s Rules, Petitioner’s brief on the merits must be filed within 45 days of granting the writ of certiorari; Respondent’s brief on the merits is due 30 days after that, and Petitioner’s reply brief 30 days after that. The total duration of the merits briefing process is thus 105 days. Even if the Court were to grant certiorari tomorrow, the briefing process could not be completed before the Court adjourns in June for its summer recess. That means that the earliest oral argument in the case could be heard, and a decision rendered, would be during the October 2013 Term.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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